Eastern Law Reporter Volume 14

Eastern Law Reporter Volume 14

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This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1915 edition. Excerpt: ... right in thinking the facts would give me such power, there can be no question about it in this case because t-he plaintifis by their counsel during the argument expressly consented that I should, if I saw fit, give the defendant such option. Neither do I think I should decree specific performance by the building of a culvert if the defendant preferred to leave the opening between the stakes mentioned free and unobstructed, or to place a bridge there which would serve all the purposes of a culvert. In addition to claiming upon the grounds mentioned the plaintiffs further claim that, failing to obtain relief by way of specific performance, they are entitled by law, and apart from any agreement, to an injunction restraining the defendant from obstructing the flow of freshet water over their interval. They claim this on the ground, that while by their deed of the right of way they must be taken to have given to the defendant the right to build all embank ments and works necessary to the construction and maintenance of the railway upon such right of way; yet this does not authorize the company to obstruct the accustomed flow of freshet over the plaintiff's intervale unless such obstruction is necessarily incident to tl1e proper construction or maintenance of the I'8.ilW8I_Y'; and as proof that a solid embankment is not necessary for such purposes they point to the evidence of Mr. McKnight that when it is desirable so to do for purposes of drainage the company of its own motion leaves openings in its railway embankments such as the plaintiffs ask to have maintained on their land. Mr. Teed referred on this point to the New Brunswick Railway Act (Consolidated Statutes, 1903, ch. 91, sec. 7 (4) and (5) ), and cited R. V. Wycombe, L. R. 2...
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Product details

  • Paperback | 208 pages
  • 189 x 246 x 11mm | 381g
  • United States
  • English
  • black & white illustrations
  • 1236766830
  • 9781236766830